The writ of summons is the workhorse of civil litigation in the National Court. Order 4 Division 3 of the National Court Rules 1983 governs its form.
Rule 16 — A writ of summons for the commencement of an action shall, except when any different form is prescribed, be in Form 5.
Rule 18 — Every writ of summons shall bear date on the day on which it is issued, and shall be tested in the name of the Chief Justice of the Court.
The teste is the formal statement that the writ issues under the authority of the Chief Justice. It is a survival from English practice, and it makes the point that a writ is not a letter from the plaintiff — it is a command of the Court.
That is why Order 4 Rule 12(3) requires the Registrar to sign and mark with the seal of the Court a sufficient number of copies for service. Until it is sealed, it is a draft.
Order 4 Rule 19 — the essential endorsement
Without prejudice to Order 8 Rule 33, before a writ of summons is issued it must be endorsed with a statement of claim.
A writ in the National Court is not a bare summons to which particulars are supplied later. The statement of claim must be endorsed on the writ before it issues.
That means the plaintiff must have their case fully formulated at the outset: the parties, the facts relied on, and the material facts establishing each element of the cause of action, together with the relief claimed under Order 4 Rule 7.
The reference to Order 8 Rule 33 preserves the position where a statement of claim is served separately — but the ordinary course, and the one the Rule requires, is endorsement on the writ.
Rules 20 to 22
Before a writ is issued it must be endorsed — (a) where the plaintiff sues in a representative capacity, with a statement of that capacity; and (b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
(2) In probate actions the endorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in any other character.
(3) The issue of a writ in a probate action shall be preceded by the filing of an affidavit by the plaintiff verifying the endorsement.
Rule 21 — where the plaintiff desires an account to be taken in the first instance, the writ shall be endorsed with a claim that such account be taken.
Rule 22 — in an action for libel, the endorsement shall state sufficient particulars to identify the publications; in an action for slander, sufficient particulars to identify the time and place where the words complained of were uttered.
These endorsement requirements sit with the separate pleading rules for defamation in Order 8 Division 7. Defamation is one of the few areas where the Rules prescribe with precision what must be identified.
Order 4 Rule 17 — costs of prolixity
Any costs occasioned by the use of any more prolix or other forms of writs, and of endorsements on them, than the forms prescribed shall be borne by the parties using the same, unless the Court otherwise directs.
A party who files an unnecessarily long writ or endorsement bears the costs of the excess themselves — and cannot recover them from the other side even if they win.
The lesson is to plead the material facts, not the evidence and not the argument. Order 8 Rule 8 says the same thing for pleadings generally, and Order 2 Rule 29 allows the Court to strike out matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.
Order 4 Rule 15
(1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time the original writ is issued or at any time before the original writ ceases to be valid.
(2) A writ for service within the jurisdiction may be issued as a concurrent writ with one to be served out of the jurisdiction, and vice versa.
(3) A concurrent writ is a true copy of the original writ with such differences only as are necessary having regard to the purpose for which it is issued.
(4) This Rule applies to an originating summons as it applies to a writ.
Where there are several defendants in different places — particularly some inside and some outside Papua New Guinea — a single original writ can be awkward to serve.
Rule 15 allows additional sealed copies with the necessary differences, each capable of being served. Note the timing limit: a concurrent writ may issue only before the original ceases to be valid — that is, within the two years allowed by Order 4 Rule 13.
Order 4 Rule 14 — notice to occupiers
Where, on the date proceedings for possession of land are commenced, a person not joined as a defendant is in occupation, the plaintiff must either state in the originating process that he does not seek to disturb the occupation, or serve the occupier with the process together with a notice that they may apply to be added as a defendant, and that if they do not apply within 21 days they may be evicted pursuant to a judgment entered in their absence.
Sub-rule (2) allows service on an occupier personally, or by leaving the documents in a prominent and secure place on the land addressed to them by name or to “the occupier”.
Once issued, the writ must be served under Order 6, and remains valid for service for two years.
Sources
- National Court Rules 1983 — O 2 r 29; O 4 rr 7, 12–22; O 8 rr 8, 33, Div 7
- National Court Act (Chapter 38) — s 5
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.